Madhya Pradesh High Court dismissed the petition of petitioner seeking a direction to be issued to GST department to conduct the search operations in the presence of advocate of petitioner.

Revenue argued that there is no provision in law allowing the petitioner’s prayer for presence of an Advocate during search and seizure.

SUBHASH JOSHI & ANOTHER vs. DIRECTOR GENERAL OF GST INTELLIGENCE & ORS.
(Madhya Pradesh High Court)

Arguments by Petitioner

The case of the petitioner is that the petitioner is the manufacturer of sweet betel nut. And that the Plot No.15-A/B-1, Sector-B, Industrial Area, Sanwer Road, Indore belongs to Shri Kishore Wadhwani and petitioner has taken this plot on lease from Shri Kishore Wadhwani and the petitioner is running the manufacturing unit on this plot. On 20th June, 2020, by the impugned notice the factory premises of the petitioner has been sealed. Petitioner apprehends that since the action was initiated against Shri Kishore Wadhwani for evasion of tax, therefore, the premises of the petitioner has been sealed. According to the petitioner, on 20th June, 2020 he was out of station, and, therefore, the petitioner had sent the notice dated 26/6/2020 for demand of justice and, thereafter the present petition has been filed.

Learned counsel for petitioner submits that though the action relating to search and seizure u/s 67 of the GST Act has been taken, but the requisite procedure has not been followed. He has submitted that the petitioner apprehends that the search and seizure may not be carried out in a fair manner and the confession of the petitioner may be recorded under pressure, therefore, a direction be issued for carrying out the search in the present of an Advocate. He has further submitted that as per the requirement of Sec.67, two independent reputed witnesses of the locality are necessary, but the respondents want to carry out the search by keeping their own pocket witnesses.

Arguments by Revenue

Learned counsel for respondents has submitted that the officials of the respondents had approached the factory premises of the petitioner on 20th June, 2020 for the purpose of search and seizure by following the due procedure in accordance with Sec.67 of the Act, but since the premises was found locked, therefore, the option was either to break open the lock and carry out the search or to seal the premises and thereafter carry out the search of the premises in the presence of the petitioner. He submits that the officials of the respondents had adopted the second option of sealing the premises and now they want to carry out the search in the petitioner’s presence. He further submits that there is no provision in law allowing the petitioner’s prayer for presence of an Advocate during search and seizure. He has also submitted that the two independent witnesses will be kept as required by law and procedure prescribed in law will be duly followed in true letter and spirit.

Held by Court

The search is yet to take place in the present case and the counsel for respondents has duly assured this court that the aforesaid provision will be complied with therefore no direction in this regard at this stage is required.

Another submission of counsel for petitioner is that the search should be carried out in the presence of the Advocate, but counsel for petitioner has failed to point out any statutory provision or any such legal right in favour of the petitioner.

Having regard to the above position in law and the fact that no such legal right has been pointed out, the submission of the counsel for petitioner to carry out the search and seizure operation in the presence of the petitioner cannot be accepted.

Having regard to the aforesaid analysis, we are of the opinion that no case for interference in the present writ petition at this stage is made out. The petition is accordingly dismissed.

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